Exhibit 10.4
AGREEMENT RE: CHANGE IN
CONTROL
This AGREEMENT RE: CHANGE IN CONTROL
(this “Agreement”) is dated as of January 16, 2009
and is entered into by and between Douglas C. Bryant
(“Executive”) and Quidel Corporation, a Delaware
corporation (the “Company”).
Background
The Company believes that because of
its position in the industry, financial resources and historical
operating results there is a possibility that the Company may
become the subject of a Change in Control (as defined below),
either now or at some time in the future.
The Company believes that it is in
the best interest of the Company and its stockholders to foster
Executive’s objectivity in making decisions with respect to
any pending or threatened Change in Control of the Company and to
assure that the Company will have the continued dedication and
availability of Executive, notwithstanding the possibility, threat
or occurrence of a Change in Control. The Company believes that
these goals can best be accomplished by alleviating certain of the
risks and uncertainties with regard to Executive’s financial
and professional security that would be created by a pending or
threatened Change in Control and that inevitably would distract
Executive and could impair his ability to objectively perform his
duties for and on behalf of the Company. Accordingly, the Company
believes that it is appropriate and in the best interest of the
Company and its stockholders to provide to Executive compensation
arrangements upon a Change in Control that lessen Executive’s
financial risks and uncertainties and that are reasonably
competitive with those of other corporations.
With these and other considerations
in mind, the Compensation Committee of the Company has authorized
the Company to enter into this Agreement with the Executive to
provide the protections set forth herein for Executive’s
financial security following a Change in Control.
NOW, THEREFORE, in consideration of
the foregoing, and for other good and valuable consideration the
receipt of which is hereby acknowledged, it is hereby agreed as
follows:
Agreement
1.
Term of Agreement
. This Agreement shall be
effective as of the date of Executive’s commencement of
employment with the Company and, subject to the provisions of
Section 4, shall extend to (and thereupon automatically
terminate) one (1) day after Executive’s termination of
employment with the Company for any reason. No termination of this
Agreement shall limit, alter or otherwise affect Executive’s
rights hereunder with respect to a Change in Control which has
occurred prior to such termination, including without limitation
Executive’s right to receive the various benefits
hereunder.
2.
Purpose of Agreement
. The purpose of this
Agreement is to provide that, in the event of a “Change in
Control,” Executive may become entitled to receive certain
additional benefits, as described herein, in the event of his
termination under specified circumstances.
3.
Change in Control
. As used in this Agreement,
the phrase “Change in Control” shall mean:
(i) Except as provided by
subparagraph (iii) hereof, the acquisition (other than from
the Company) by any person, entity or “group”, within
the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (excluding, for this purpose, the Company or its
subsidiaries, or any executive benefit plan of the Company or its
subsidiaries which acquires beneficial ownership of voting
securities of the Company), of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
forty percent (40%) or more of either the then outstanding shares
of common stock or the combined voting power of the Company’s
then outstanding voting securities entitled to vote generally in
the election of directors; or
(ii) Individuals who, as of
the date hereof, constitute the Board of Directors of the Company
(as of the date hereof the “Incumbent Board”) cease for
any reason to constitute at least a majority of the Board of
Directors of the Company, provided that any person becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company’s stockholders, is or
was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is
in connection with an actual or threatened election contest
relating to the election of the Directors of the Company, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent
Board; or
(iii) Approval by the
stockholders of the Company of a reorganization, merger or
consolidation with any other person, entity or corporation, other
than
(1) a merger or consolidation
which would result in the voting securities of the Company
outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting
securities of another entity) more than fifty percent (50%) of the
combined voting power of the voting securities of the Company or
such other entity outstanding immediately after such merger or
consolidation, or
(2) a merger or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) in which no person acquires forty percent (40%) or
more of the combined voting power of the Company’s then
outstanding voting securities; or
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(iv) Approval by the
stockholders of the Company of a plan of complete liquidation of
the Company or an agreement for the sale or other disposition by
the Company of all or substantially all of the Company’s
assets.
4.
Effect of a Change in
Control . In the
event of a Change in Control, Sections 6 through 13 of this
Agreement shall become applicable to Executive. These Sections
shall continue to remain applicable until the third anniversary of
the date upon which the Change in Control occurs. On such
third anniversary date, and provided that the employment of
Executive has not been terminated on account of a Qualifying
Termination (as defined in Section 5 below), this Agreement
shall terminate and be of no further force or effect.
5.
Qualifying Termination
. If following, or within
thirty (30) days prior to, a Change in Control Executive’s
employment with the Company and its affiliated companies is
terminated, such termination shall be conclusively considered a
“Qualifying Termination” unless:
(a)
Executive voluntarily terminates his
employment with the Company and its affiliated companies.
Executive, however, shall not be considered to
have voluntarily terminated his employment with the Company and its
affiliated companies if, following, or within thirty (30) days
prior to, the Change in Control, Executive’s base salary is
reduced or adversely modified in any material respect, or
Executive’s authority or duties are materially changed, and
subsequent to such reduction, modification or change Executive
elects to terminate his employment with the Company and its
affiliated companies within sixty (60) days following such
reduction, modification or change after having given the Company at
least thirty (30) days notice of the same and a reasonable
opportunity to cure during such 30-day notice period. For
such purposes, Executive’s authority or duties shall
conclusively be considered to have been “materially
changed” if, without Executive’s express and voluntary
written consent, there is any substantial diminution or adverse
modification in Executive’s title, status, overall position,
responsibilities, reporting relationship, general working
environment (including without limitation secretarial and staff
support, offices, and frequency and mode of travel), or if, without
Executive’s express and voluntary written consent,
Executive’s job location is transferred to a site more than
twenty-five (25) miles away from his place of employment thirty
(30) days prior to the Change in Control. In this regard as
well, Executive’s authority and duties shall conclusively be
considered to have been “materially changed” if,
without Executive’s express and voluntary written consent,
Executive no longer holds the same title or no longer has the same
authority and responsibilities or no longer has the same reporting
responsibilities, in each case with respect and as to a publicly
held parent company which is not controlled by another entity or
person.
(b)
The termination is on account of
Executive’s death or Disability.
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For such purposes,
“Disability” shall mean a physical or mental incapacity
as a result of which Executive becomes unable to continue the
performance of his responsibilities for the Company and its
affiliated companies and which, at least three (3) months
after its commencement, is determined to be total and permanent by
a physician agreed to by the Company and Executive, or in the event
of Executive’s inability to designate a physician,
Executive’s legal representative. In the absence of agreement
between the Company and Executive, each party shall nominate a
qualified physician and the two physicians so nominated shall
select a third physician who shall make the determination as to
Disability.
(c)
Executive is involuntarily
terminated for “Cause.” For this purpose,
“Cause” shall be limited to only three types of
events:
(1)
the willful and deliberate refusal
of Executive to comply with a lawful, written instruction of the
Board of Directors, which refusal is not remedied by Executive
within a reasonable period of time after his receipt of written
notice from the Company identifying the refusal, so long as the
instruction is consistent with the scope and responsibilities of
Executive’s position prior to the Change in
Control;
(2)
an act or acts of personal
dishonesty by Executive which were intended to result i
